[2025] EWHC 2126 (Comm)

Section 70(3) of the 1996 Act provides that a party challenging an award must do so within 28 days of the award. (Footnote: ²) This short period was imposed in order to serve the principles of speed and finality in respect of arbitration claims: see Terna Bahrain Holding Company WLL v Al Shamsi [2013] 1 Lloyd’s Rep 86, at [27], where Popplewell J (as he then was) said this:

“The principles regarding extensions of time to challenge an arbitration award have been addressed in a number of recent authorities, most notably in Kalmneft v Glencore [2002] 1 Lloyd’s Rep 128 , Nagusina Naviera v Allied Maritime Inc [2003] 2 CLC 1, L Brown & Sons Limited v Crosby Homes (Northwest) Limited [2008] BLR 366, Broda Agro Trading v Alfred C Toepfer International [2011] 1 Lloyd’s Rep 243, and Nestor Maritime v Sea Anchor Shipping [2012] 2 Lloyd’s Rep 144, from which I derive the following principles:

(1)

Section 70(3) of the [1996 Act] requires challenges to an award under sections 67 and 68 to be brought within 28 days. This relatively short period of time reflects the principle of speedy finality which underpins the Act, and which is enshrined in section 1(a). The party seeking an extension must therefore show that the interests of justice require an exceptional departure from the timetable laid down by the Act. Any significant delay beyond 28 days is to be regarded as inimical to the policy of the Act.

(2)

The relevant factors are:

(i)

the length of the delay;

(ii)

whether the party who permitted the time limit to expire and subsequently delayed was acting reasonably in the circumstances in doing so;

(iii)

whether the respondent to the application or the arbitrator caused or contributed to the delay;

(iv)

whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed;

(v)

whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration, or the costs incurred in respect of the arbitration, the determination of the application by the Court might now have;

(vi)

the strength of the application;

(vii)

whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined.

(3)

Factors (i), (ii), and (iii) are the primary factors.”

The principles set out by Popplewell J quoted at [27(2)] of his judgment were ones first identified by Colman J in Kalmneft JSC v Glencore International AG [2001] 2 AER (Comm) 577, at [59] to [60], and are often referred to as the “Colman Principles”.

Terna was not a case about amending the particulars of claim in a claim form after the 28-day limitation period prescribed in s.70(3), but, rather, was about whether an extension of time to challenge an award under ss.67 and 68 of the 1996 Act would be permitted where the application to challenge would in any event fail. Popplewell J held the answer to that question was “no”.

The principles which Popplewell J set out in Terna are of direction application to where an amendment is sought outside the 28-day period from a challenge to an award under s.72(2).

In addition, four matters stand out from the authorities: